Dogfighting Videos Protected as Free Speech Under 1st Amendment?

Dogfighting is against the law in the United States, and the great majority of people, except for a small number of individuals involved in illegal dogfighting, consider it morally wrong.

But what about videos of dogfighting?

It's not something most people would want to watch, but should those videos be protected as free speech under the First Amendment? It's a question the U.S. Supreme Court has agreed to answer.

The case in question involves a man named Robert Stevens. He did not participate in actual dogfighting, yet he compiled and sold videos of the actual fighting. That act alone got him convicted under a 1999 law that bans trafficking in "depictions of animal cruelty." He was sentenced to 37 months in prison. But last year a federal appeals court overturned the conviction on First Amendment grounds.

The bill was originally designed to address what a U.S. House report called “a very specific sexual fetish" -- videos of women crushing small animals. Even when President Clinton signed the bill, he expressed reservations prompted by the First Amendment and instructed the Justice Department to limit prosecutions to “wanton cruelty to animals designed to appeal to a prurient interest in sex.” But the Bush Justice Department pursued at least three prosecutions for the sale of dogfighting videos, including Stevens.

At his trial, experts for the defense said the videos had educational and historical value, noting that much of the footage came from Japan, where dogfighting is legal. A veterinarian who testified for the prosecution disputed that, saying the videos depicted terrible suffering, including scenes of dogs that were “bitten, ripped and torn” and “screaming in pain.”

Another video shows pit bulls being trained to attack hogs and then hunting wild boar. Stevens participated in the hunting and filmed parts of that video. The encounters are brutal and bloody. But so are some encounters between animals and their prey shown on nature documentaries that air regularly on television.

Stevens' brief for the Court says:

“While acts of animal cruelty have long been outlawed, there have never been any laws against speech depicting the killing or wounding of animals from the time of the First Amendment’s adoption through the intervening two centuries.”

The brief also points out Stevens’ sentence was 14 months longer than Michael Vick's, who actually ran a dogfighting ring.

The Supreme Court will hear the case on October 6. The Court is in a position to rule that a particular type of expression is so vile, that it doesn't deserve protection under the First Amendment. The last time it did that was in 1982, when it outlawed child pornography.

Stevens would not comment for a story by The New York Times. But his son told the newspaper his father has had a longtime fascination with pit bulls. "You couldn’t treat a dog any better,” Michael Stevens said, “than my father treats pit bull dogs.”